The state of Oklahoma and Johnson & Johnson agree on one thing: Oklahoma has an opioid crisis.
Where they strongly disagree is who created the problem and what should be done to fix it.
Attorneys for the two sides made that clear Monday during closing arguments in a case where the opioid maker has been accused of helping cause the crisis through false and deceptive marketing that understated the addictive and overdose risks of opioid painkillers while overstating there therapeutic benefits.
“What is truly unprecedented here is the conduct of these defendants in embarking on a cunning, cynical and deceitful scheme to create and feed the need for opioids,” Attorney General Mike Hunter said. “Why did they do this? … Greed.”
Hunter said the company’s actions included engineering a mutant poppy to amplify the need for opioids, and overstating the effectiveness and minimizing the risks of the drugs in marketing materials. Those actions also included oversupplying “these addictive drugs that have devastated Oklahoma communities and wrecked countless Oklahomafamilies,” he said.
“The only question is whether the Oklahoma taxpayer or the ‘kingpin’ of it all should be required to bear the cost,” Hunter said.
Speaking on behalf of Johnson & Johnson, Oklahoma City attorney Larry Ottaway said the situation is complicated. He argued that it would be wrong to blame Johnson & Johnson for the crisis.
Ottaway pointed to testimony by Oklahoma doctors who said they were keenly aware of the risks of opioids but continued to prescribe them because untreated pain also carries risks, including diminished quality of life, loss of function, depression and even suicide.
Those risks, including the risks of addiction and death, are clearly pointed out in federal Food and Drug Administration labeling instructions that are required to accompany every prescription, he noted.
Ottaway argued the solution to the problem would be to let Oklahoma doctors continue to make prescribing decisions.
“I trust them,” Ottaway said. “We trust them with our lives every day.”
The state wants Cleveland County District Judge Thad Balkman to declare that the actions of Johnson & Johnson and its subsidiaries created a public nuisance and to order them to pay more than $17.5 billion to abate the problem.
Judge Balkman indicated it will likely be the end of August or early September before he issues a verdict in the non-jury trial. Balkman said he will give attorneys until July 31 to file proposed findings of fact and conclusions of law in the case and then will take about another month before issuing his decision.
Oklahoma experienced more than 6,100 prescription opioid-related deaths from 2000-2017.
Attorneys used their closing arguments Monday to highlight what they consider to be key testimony in a trial that lasted more than a month and a half.
State attorneys once again ripped Johnson & Johnson for using sales representatives, self-funded studies, key opinion leaders and speakers at company-funded continuing education events to promote the message to doctors that opioids have a low addiction rate if prescribed properly to appropriate patients who are carefully monitored.
Using a game show type format that he called “Who wants to be a pain franchise billionaire?” state’s attorney Brad Beckworth ridiculed Johnson & Johnson for calling witnesses who cited reports that claimed opioids have a low addiction rate. Some reports claimed the addiction rate was a fraction of 1%.
Beckworth noted that one of the drug company’s expert witnesses, before he came to court, had made a presentation in which he stated the addiction rate was 25%. And another drug company witness, a doctor, testified the addiction rate was 100 percent if a patient stayed on the drug long enough, Beckworth said.
Johnson & Johnson’s corporate representative testified during the trial that the actual rate of opioid addiction is unknown.
Beckworth criticized Johnson & Johnson for having its sales representatives target high prescribers of opioids for additional sales calls and for tying their sales representatives’ pay to the amount of additional prescriptions that doctors wrote.
“When it comes to pushing narcotics, you should never pay people, incentivize them, to get more drugs prescribed,” Beckworth said. “That’s just not right.”
Ottaway, the attorney for Johnson & Johnson, used part of his closing argument to remind the judge that the company’s branded products had an extremely small portion of the market share in Oklahoma and weren’t among the most widely abused, because the company had taken steps to make them as tamper proof as possible.
State attorneys questioned whether Johnson & Johnson’s market share was relevant, reminding the judge of testimony that at the height of the opioid crisis, a Johnson & Johnson subsidiary was providing numerous other opioid manufacturers with the active pharmaceutical ingredient for their opioids.
Throughout the trial, the state’s attorneys referred to Johnson & Johnson as a “kingpin” in the opioid crisis, citing the role of the company’s then-subsidiary Noramco in supplying active ingredients to other opioid manufacturers.
“Johnson & Johnson knew opioid drugs are addictive and cause harm” but chose to market them for “everyday pain,” Beckworth said. “When you oversupply, people will die.”
Johnson & Johnson’s attorney pointed to testimony that the amounts of active ingredients Noramco was allowed to manufacture and that other companies were allowed to purchase were tightly regulated by the federal Drug Enforcement Administration. Johnson & Johnson divested itself of Noramco in 2016.
The Oklahoma opioid trial has been closely watched nationally because it is the first of hundreds of similar lawsuits filed nationally that has actually made it to trial. More than 1,700 of the other lawsuits have been consolidated in a major federal court action pending in Ohio.
Oklahoma’s lawsuit originally named two other groups of pharmaceutical companies as additional defendants, but they were dropped from the lawsuit after they approved settlement agreements with the state. A group headed by Purdue Pharma agreed to pay $270 million, while a group headed by Teva Pharmaceuticals USA Inc., agreed to pay $85 million.
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